Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth)
This is a compilation of the
This compilation was prepared on 16 November 2015.
The notes at the end of this compilation (the
The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on ComLaw ( The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on ComLaw for the compiled law.
If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.
If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on ComLaw for the compiled law.
If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.
Contents
This Act may be cited as the
Counter‑Terrorism Legislation Amendment (Foreign Fighters) Act 2014 .
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | 3 November 2014 |
Schedules 1 and 2 | The 28th day after this Act receives the Royal Assent. | 1 December 2014 |
Schedules 3 to 5 | The day after this Act receives the Royal Assent. | 4 November 2014 |
Schedule 6 | 1 July 2015. | 1 July 2015 |
Schedule 7, items 1 to 3 | The day after this Act receives the Royal Assent. | 4 November 2014 |
Schedule 7, item 4 | Immediately after the commencement of the provisions covered by table item 5. However, if item 2 of Schedule 1 to the | 4 November 2014 |
Schedule 7, item 5 | Immediately after the commencement of item 2 of Schedule 1 to the However, if the related item commences before the commencement of the provisions covered by table item 1, the provisions do not commence at all. | 18 April 2015 |
Schedule 7, item 6 | The day after this Act receives the Royal Assent. | 4 November 2014 |
Schedule 7, item 7 | The day after this Act receives the Royal Assent. However, if item 2 of Schedule 1 to the | Never commenced |
Schedule 7, item 8 | The day after this Act receives the Royal Assent. | 4 November 2014 |
Schedule 7, item 9 | The day after this Act receives the Royal Assent. However, if item 2 of Schedule 1 to the | 4 November 2014 |
Schedule 7, item 10 | Immediately after the commencement of item 2 of Schedule 1 to the However, if the related item commences before the commencement of the provisions covered by table item 6, the provisions do not commence at all. | 18 April 2015 |
Schedule 7, item 11 | The day after this Act receives the Royal Assent. | 4 November 2014 |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Insert:
(dc) decisions under section 22A or 24A of the
Australian Passports Act 2005 ;(dd) decisions under section 15A or 16A of the
Foreign Passports (Law Enforcement and Security) Act 2005 ;
Insert:
Attorney‑General’s Department means the Department administered by the Attorney‑General.
3
Section 5 (after paragraph (ha) of the definition of designated agency ) Insert:
(hb) the Attorney‑General’s Department; or
(1) The amendments of section 5 of the
Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 made by this Schedule apply in relation to disclosures of, and access to, information after this item commences, whether the information was obtained before, on or after that commencement.(2) For the purposes of the
Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 , if information is disclosed in accordance with a provision of that Act to an official of the Attorney‑General’s Department before this item commences, the information is taken to have been disclosed to an official of a designated agency.
Omit “section 49 or”.
Repeal the paragraphs.
Repeal the paragraphs.
The amendments of sections 121 and 122 of the
Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 made by this Schedule apply in relation to disclosures of information after this item commences, whether the information was obtained before, on or after that commencement.
After “5.3”, insert “or 5.5”.
Omit “deals with terrorism”, substitute “deal with terrorism, foreign incursions and recruitment”.
Insert:
ASIO means the Australian Security Intelligence Organisation.
Repeal the heading, substitute:
Add “or is suspended under section 22A”.
Repeal the heading, substitute:
Repeal the heading, substitute:
Cessation of validity
Add:
Suspension of validity
(3) An Australian passport is not valid while it is suspended under section 22A.
Repeal the heading, substitute:
Cessation of validity
Before “A travel‑related document”, insert “(1)”.
Add:
Suspension of validity
(2) A travel‑related document is not valid while it is suspended under section 22A.
Add:
(3) To avoid doubt, the suspension of an Australian travel document does not prevent the Minister from cancelling it.
Add:
(1) The Minister may, on request under subsection (2), suspend for 14 days all Australian travel documents that have been issued to a person.
(2) The Director‑General of Security may request the Minister to suspend all Australian travel documents issued to a person if the Director‑General suspects on reasonable grounds that:
(a) the person may leave Australia to engage in conduct that might prejudice the security of Australia or a foreign country; and
(b) all the person’s Australian travel documents should be suspended in order to prevent the person from engaging in the conduct.
(3) If an Australian travel document of a person has been suspended under subsection (1), another request under subsection (2) relating to the person must not be made unless the grounds for suspicion mentioned in subsection (2) include information first obtained by the Director‑General of Security or an officer or employee of ASIO after the end of the suspension.
(4) The Director‑General of Security may, in writing, delegate his or her power under subsection (2) to a Deputy Director‑General of Security (within the meaning of the
Australian Security Intelligence Organisation Act 1979 ).(5) In exercising power under a delegation, the delegate must comply with any directions of the Director‑General of Security.
Add “except because of a suspension under section 22A”.
Insert:
(1) An officer may demand that a person surrender an Australian travel document to the officer if the document is suspended under section 22A.
(2) A person commits an offence if:
(a) an officer demands under subsection (1) that the person surrender an Australian travel document; and
(b) the officer informs the person that the officer is authorised to demand that document; and
(c) the officer informs the person that it may be an offence not to comply with the demand; and
(d) the person has possession or control of the document; and
(e) the person fails to surrender the document to the officer immediately.
Penalty: Imprisonment for 6 months or 10 penalty units, or both.
(3) An Australian travel document obtained by an officer under this section must be returned, to the person to whom it was issued, at the end of the period for which it is suspended, unless it is cancelled.
Omit “Under section 27A”, substitute “Except in cases described in section 48A of this Act, under section 27A”.
Insert:
Application
(1) This section sets out when the Minister is not required to notify a person of a decision by the Minister to do either of the following because of a refusal/cancellation request made under subsection 14(1):
(a) refuse to issue an Australian passport to the person;
(b) cancel an Australian travel document issued to the person.
Note: This section applies to a delegate of the Minister in the same way as it applies to the Minister: see paragraph 34AB(1)(c) of the
Acts Interpretation Act 1901 .
Request by ASIO
(2) The Minister is not required to notify the person if:
(a) the request was made by ASIO or the Director‑General of Security; and
(b) there is in force a certificate under paragraph 38(2)(a) of the
Australian Security Intelligence Organisation Act 1979 relating to notice to the person of the making of the security assessment that constituted the request.
Request by Australian Federal Police
(3) The Minister is not required to notify the person if:
(a) the request was made by a member or a special member of the Australian Federal Police; and
(b) there is in force a certificate under subsection (4).
(4) If the Minister administering the
Australian Federal Police Act 1979 is satisfied that notifying the person of the decision would adversely affect a current investigation of any of the following offences, that Minister may, by signed writing, certify accordingly:
(a) an offence against Subdivision A of Division 72 of the
Criminal Code ;(b) an offence against Subdivision B of Division 80 of the
Criminal Code ;(c) an offence against Part 5.3 or 5.5 of the
Criminal Code ;(d) an offence against either of the following provisions of the
Charter of the United Nations Act 1945 :
(i) Part 4 of that Act;
(ii) Part 5 of that Act, to the extent that it relates to the
Charter of the United Nations (Sanctions—Al‑Qaida) Regulations 2008 .(5) A certificate under subsection (4) is not a legislative instrument.
(6) If the Minister administering the
Australian Federal Police Act 1979 issues a certificate under subsection (4) or revokes a certificate under that subsection, he or she must give a copy of the certificate or revocation to the Minister administering this Act.(6A) Before the end of the following periods, the Minister administering the
Australian Federal Police Act 1979 must consider whether to revoke a certificate under subsection (4) (if the certificate remains in force):
(a) 12 months after it was issued;
(b) 12 months after that Minister last considered whether to revoke it.
Overriding the Administrative Appeals Tribunal Act 1975
(7) This section has effect despite section 27A of the
Administrative Appeals Tribunal Act 1975 .Note: If subsection (2) or (3) ceases to apply because a certificate mentioned in that subsection ceases to be in force, section 27A of the
Administrative Appeals Tribunal Act 1975 (about notification) will apply in relation to the decision (unless the other of those subsections still applies).
Insert:
(1A) The Minister may, in writing, delegate to the Secretary of the Department the Minister’s power under subsection 22A(1).
27 Section 4 (paragraph (c) of the definition of politically motivated violence ) Omit “the
Crimes (Foreign Incursions and Recruitment) Act 1978 ”, substitute “Division 119 of theCriminal Code ”.
Repeal the paragraph, substitute:
(b) that, having regard to other methods (if any) of collecting the intelligence that are likely to be as effective, it is reasonable in all the circumstances for the warrant to be issued; and
The amendment of subsection 34D(4) of the
Australian Security Intelligence Organisation Act 1979 made by this Schedule applies to the giving of consent where that consent was sought on or after the commencement of the amendment.
Add:
(10) A person commits an offence if:
(a) the person has, in accordance with a warrant issued under this Division, been requested to produce a record or thing; and
(b) the person engages in conduct; and
(c) as a result of the conduct, the record or thing is unable to be produced, or to be produced in wholly legible or usable form.
Penalty: Imprisonment for 5 years.
31
Application of subsection 34L(10) of the Australian Security Intelligence Organisation Act 1979 Subsection 34L(10) of the
Australian Security Intelligence Organisation Act 1979 applies to conduct occurring on or after the commencement of the subsection, whether the warrant was or is issued under Division 3 of Part III of that Act before, on or after that commencement.
Repeal the subsection, substitute:
(3) Without limiting the operation of subsection (2), a police officer must not, in the course of an act described in subsection (1) in relation to a person, do anything that is likely to cause the death of, or grievous bodily harm to, the person unless the officer believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the officer).
Omit “22 July 2016”, substitute “7 September 2018”.
Insert:
(ba) a security assessment that is a request under section 22A of the
Australian Passports Act 2005 for suspension of all Australian travel documents issued to a person; or
Add:
(7) Before the end of the following periods, the Attorney‑General must consider whether to revoke a certificate certifying in accordance with paragraph (2)(a) (if the certificate remains in force):
(a) 12 months after it was issued;
(b) 12 months after the Attorney‑General last considered whether to revoke it.
Subsection 38(7) of the
Australian Security Intelligence Organisation Act 1979 applies to certificates issued on or after the commencement of that subsection.
35 Subsection 3(1) (after paragraph (a) of the definition of terrorism offence ) Insert:
(aa) an offence against Subdivision B of Division 80 of the
Criminal Code ; or
36 Subsection 3(1) (paragraph (b) of the definition of terrorism offence ) After “Part 5.3”, insert “or 5.5”.
37 Subsection 3(1) (at the end of the definition of terrorism offence ) Add:
; or (c) an offence against either of the following provisions of the
Charter of the United Nations Act 1945 :(i) Part 4 of that Act;
(ii) Part 5 of that Act, to the extent that it relates to the
Charter of the United Nations (Sanctions—Al‑Qaida) Regulations 2008 .
The amendments of the definition of
terrorism offence in subsection 3(1) of theCrimes Act 1914 made by this Schedule apply in relation to any terrorism offence, whether the offence occurs before, on or after the commencement of this item.
Repeal the heading, substitute:
Add:
Note: Under section 3ZZBJ, an eligible issuing officer (within the meaning of Part IAAA) may, as specified in that section, consider and deal with an application for a warrant as if the eligible issuing officer were an issuing officer within the meaning of this Part.
After “another law of the Commonwealth”, insert “(including other provisions of this Act)”.
Insert:
Note: For the issue of delayed notification search warrants, see Part IAAA.
Omit “the end of 10 years after the day on which the Division commences”, substitute “7 September 2018”.
Omit “10 years after the day on which this Division commences”, substitute “7 September 2018”.
Omit “the end of 10 years after the day on which this Division commences”, substitute “7 September 2018”.
After “offence” (first occurring), insert “(other than a terrorism offence and an offence against section 80.2C of the
Criminal Code )”.
Insert:
(1) A constable may, without warrant, arrest a person for a terrorism offence or an offence against section 80.2C of the
Criminal Code if the constable suspects on reasonable grounds that:
(a) the person has committed or is committing the offence; and
(b) proceedings by summons against the person would not achieve one or more of the following purposes:
(i) ensuring the appearance of the person before a court in respect of the offence;
(ii) preventing a repetition or continuation of the offence or the commission of another offence;
(iii) preventing the concealment, loss or destruction of evidence relating to the offence;
(iv) preventing harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence;
(v) preventing the fabrication of evidence in respect of the offence;
(vi) preserving the safety or welfare of the person.
(2) If:
(a) a person has been arrested for an offence under subsection (1); and
(b) before the person is charged with the offence, the constable in charge of the investigation ceases to suspect on reasonable grounds:
(i) that the person committed the offence; or
(ii) that holding the person in custody is necessary to achieve a purpose referred to in paragraph (1)(b);
the person must be released.
The amendment of section 3W of the
Crimes Act 1914 made by this Schedule, and section 3WA of that Act, apply to an arrest made after this item commences (whether the alleged offence in relation to which the arrest is made is believed or suspected of having been committed before, on or after that commencement).
After “section 3W”, insert “or 3WA”.
Repeal the paragraph, substitute:
(e) specify the day by which the person must comply with the notice, being a day that is at least:
(i) 14 days after the giving of the notice; or
(ii) if the officer believes that it is appropriate, having regard to the urgency of the situation, to specify an earlier day—3 days after the giving of the notice; and
Insert:
(1) The object of this Part is to provide for eligible agencies to obtain search warrants:
(a) that relate to eligible offences; and
(b) that authorise the entry and search of premises without having to produce the warrant at the time of entry and search.
(2) A warrant issued under this Part is a
delayed notification search warrant .(3) An
eligible agency is the Australian Federal Police.(4) An
eligible offence is a terrorism offence that is punishable on conviction by imprisonment for 7 years or more.
(1) This Part is not intended to limit or exclude the operation of another law of the Commonwealth (including other provisions of this Act) relating to:
(a) the search of premises; or
(b) the seizure of things; or
(c) the use of an assumed identity; or
(d) the installation of surveillance devices (within the meaning of the
Surveillance Devices Act 2004 ).(2) To avoid doubt, it is declared that even though another law of the Commonwealth provides power to do one or more of the things referred to in subsection (1), a similar power conferred by this Part may be used despite the existence of the power under the other law.
In this Part:
adjoining premises , in relation to particular premises, means premises adjoining, or providing access, to the premises.
adjoining premises occupier’s notice : see section 3ZZDB.
applicable normal search warrant regime : see subsection 3ZZBJ(2).
authorised agency means the Australian Federal Police.
chief officer , in relation to an authorised agency or eligible agency, means the Commissioner.
conditions for issue : see section 3ZZBA.
damage , in relation to data, includes damage by erasure of data or addition of other data.
day of execution of a delayed notification search warrant means the day on which the warrant premises were first entered under the warrant.
delayed notification search warrant : see subsection 3ZZAA(2).
eligible agency : see subsection 3ZZAA(3).
eligible issuing officer : see subsection 3ZZAD(1).
eligible offence : see subsection 3ZZAA(4).
eligible officer of an authorised agency or eligible agency means a member or special member of the Australian Federal Police.
emergency situation , in relation to the execution of a delayed notification search warrant in relation to premises, means a situation that the executing officer or a person assisting believes, on reasonable grounds, involves a serious and imminent threat to a person’s life, health or safety that requires the executing officer and persons assisting to leave the premises.
evidential material means a thing relevant to an eligible offence, or an indictable offence, that has been, is being, is about to be or is likely to be committed.
executing officer , in relation to a delayed notification search warrant, means:
(a) the eligible officer of the authorised agency who is named in the warrant by the eligible issuing officer as being responsible for executing the warrant; or
(b) if that eligible officer does not intend to be present at the execution of the warrant—another eligible officer of the authorised agency whose name has been written in the warrant by the eligible officer so named; or
(c) another eligible officer of the authorised agency whose name has been written in the warrant by the eligible officer of the authorised agency last named in the warrant.
inspecting officer means a person appointed under subsection 3ZZGA(1).
nominated AAT member means a person in relation to whom a nomination is in force under section 3ZZAF.
person assisting , in relation to a delayed notification search warrant, means:
(a) a person who is an eligible officer of the authorised agency and who is assisting in the execution of the warrant; or
(b) another person who has been authorised by the executing officer to assist in executing the warrant.
premises includes a place and a conveyance.
relevant eligible agency , in relation to a thing seized under this Part, is the eligible agency whose chief officer authorised the application for the delayed notification search warrant under which the thing was seized.
staff member of an authorised agency or eligible agency means a person referred to in paragraph (a) of the definition oflaw enforcement officer in subsection 3(1).
State or Territory agency : see section 3ZZGF.
State or Territory inspecting authority : see section 3ZZGF.
State or Territory law enforcement agency means:
(a) the police force or police service of a State or Territory; or
(b) the New South Wales Crime Commission constituted by the
Crime Commission Act 2012 (NSW); or(c) the Independent Commission Against Corruption constituted by the
Independent Commission Against Corruption Act 1988 (NSW); or(d) the Police Integrity Commission constituted by the
Police Integrity Commission Act 1996 (NSW); or(e) the Independent Broad‑based Anti‑corruption Commission established by the
Independent Broad‑based Anti‑corruption Commission Act 2011 (Vic.); or(f) the Crime and Corruption Commission established by the
Crime and Corruption Act 2001 (Qld); or(g) the Corruption and Crime Commission established by the
Corruption and Crime Commission Act 2003 (WA); or(h) the Independent Commissioner Against Corruption established by the
Independent Commissioner Against Corruption Act 2012 (SA); or(i) the Integrity Commission established by the
Integrity Commission Act 2009 (Tas.).
thing includes a thing in electronic form.
warrant premises means premises in relation to which a delayed notification search warrant is in force, but does not include any adjoining premises that are also authorised to be entered under the warrant.
warrant premises occupier’s notice : see section 3ZZDA.
(1) An
eligible issuing officer is:
(a) a person:
(i) who is a Judge of the Federal Court of Australia, or a Judge of the Supreme Court of a State or Territory; and
(ii) in relation to whom a consent under subsection 3ZZAE(1), and a declaration under subsection 3ZZAE(2), are in force; or
(b) a nominated AAT member.
(2) A function or power conferred on a Judge by this Part is conferred on the Judge in a personal capacity and not as a court or a member of a court.
(3) A Judge has, in relation to the performance or exercise of a function or power conferred on an eligible issuing officer by this Part, the same protection and immunity as if he or she were performing that function, or exercising that power, as, or as a member of, a court (being the court of which the Judge is a member).
Note: A member of the Administrative Appeals Tribunal has the same protection and immunity as a Justice of the High Court (see subsection 60(1) of the
Administrative Appeals Tribunal Act 1975 ).
(1) A Judge of the Federal Court of Australia, or of the Supreme Court of a State or Territory, may, by writing, consent to be declared an eligible issuing officer by the Minister under subsection (2).
(2) The Minister may, by writing, declare a Judge in relation to whom a consent under subsection (1) is in force to be an eligible issuing officer for the purposes of this Part.
(3) A consent or declaration under this section is not a legislative instrument.
(1) The Minister may, by writing, nominate a person who holds one of the following appointments to the Administrative Appeals Tribunal to issue delayed notification search warrants and perform related functions under this Act:
(a) Deputy President;
(b) full‑time senior member.
(2) Despite subsection (1), the Minister must not nominate a person who holds an appointment as a full‑time senior member of the Tribunal unless the person:
(a) is enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or of the Australian Capital Territory; and
(b) has been so enrolled for not less than 5 years.
(3) A nomination ceases to be in force if:
(a) the nominated AAT member ceases to hold an appointment described in subsection (1); or
(b) the Minister, by writing, withdraws the nomination.
A person is satisfied that the
conditions for issue of a delayed notification search warrant are met in respect of particular premises if the person:
(a) suspects, on reasonable grounds, that one or more eligible offences have been, are being, are about to be or are likely to be committed; and
(b) suspects, on reasonable grounds, that entry and search of the premises will substantially assist in the prevention or investigation of one or more of those offences; and
(c) believes, on reasonable grounds, that it is necessary for the entry and search of the premises to be conducted without the knowledge of the occupier of the premises or any other person present at the premises.
(1) The chief officer of an eligible agency may, in writing, authorise an eligible officer of the agency to apply for a delayed notification search warrant in respect of particular premises if the chief officer is satisfied that the conditions for issue are met.
(2) The chief officer of an eligible agency may orally (in person or by telephone or other means of voice communication) authorise an eligible officer of the agency to apply for a delayed notification search warrant in respect of particular premises if the chief officer is satisfied that:
(a) the conditions for issue are met; and
(b) either:
(i) it is an urgent case; or
(ii) the delay that would occur if the authorisation were in writing would frustrate the effective execution of the delayed notification search warrant.
(3) If the chief officer of an eligible agency gives an authorisation under subsection (2), he or she must make a written record of the authorisation within 7 days.
(1) An eligible officer of an eligible agency may apply to an eligible issuing officer for a delayed notification search warrant in respect of particular premises if the officer is authorised under section 3ZZBB to apply for the warrant.
Note 1: The application will need to address:
(a) why the conditions for issue are met (see section 3ZZBA); and
(b) other matters the eligible issuing officer must have regard to (see subsection 3ZZBD(2)); and
(c) matters that must be specified in the warrant (see subsection 3ZZBE(1)).
Note 2: In urgent cases or certain other cases, an application may be made by telephone, fax or other electronic means: see section 3ZZBF.
(2) The eligible officer must provide the eligible issuing officer with:
(a) a copy of, or details of, the authorisation under section 3ZZBB; and
(b) particulars of any applications, and the outcomes, so far as known to the eligible officer, of any previous applications, in respect of the premises, for a warrant under this Part or Division 2 of Part IAA.
(3) The application must be supported by an affidavit setting out the grounds on which the warrant is sought.
(4) The eligible issuing officer may request further information relating to the application, and may require that the information be provided on oath or affirmation.
(1) If:
(a) an eligible officer applies to an eligible issuing officer, in accordance with section 3ZZBC, for a delayed notification search warrant in respect of particular premises (the
main premises ); and(b) the eligible issuing officer is satisfied, by information on oath or affirmation, that the conditions for issue are met;
the eligible issuing officer may issue a delayed notification search warrant in respect of the premises.
(2) In determining whether the delayed notification search warrant should be issued, the eligible issuing officer must have regard to the following:
(a) the extent to which the exercise of the powers under the warrant would assist the prevention or investigation of the eligible offence to which the application for the warrant relates;
(b) the existence of alternative means of obtaining the evidence or information sought to be obtained;
(c) the extent to which the privacy of any person is likely to be affected;
(d) the nature and seriousness of that offence;
(e) if it is proposed that adjoining premises be entered for the purpose of entering the main premises—whether allowing entry to the adjoining premises is reasonably necessary:
(i) to enable entry to the main premises; and
(ii) to avoid compromising the prevention or investigation of that offence;
(f) any conditions to which the warrant should be subject;
(g) the outcome, so far as known to the eligible issuing officer, of any previous application, in respect of the main premises, for a warrant under this Part or Division 2 of Part IAA.
(3) An eligible issuing officer of the Federal Court of Australia or the Administrative Appeals Tribunal may issue a delayed notification search warrant in relation to premises located anywhere in the Commonwealth or an external Territory.
(4) An eligible issuing officer of the Supreme Court of a State or Territory may issue a delayed notification search warrant only in relation to premises located in that State or Territory.
(1) A delayed notification search warrant must specify the following:
(a) the name of the applicant;
(b) the name of the authorised agency;
(c) the name of the eligible officer of that agency who, unless he or she inserts the name of another such eligible officer in the warrant, is to be responsible for executing the warrant;
(d) the address, location or other description of the warrant premises;
(e) the eligible offence to which the warrant relates;
(f) whether the warrant authorises the entry of adjoining premises, and if it does, the address, location or other description of the adjoining premises;
(g) the day on which, and the time at which, the warrant is issued;
(h) the day on which, and the time at which, the warrant expires (which must be a time on a day that is not more than 30 days after the day on which the warrant is issued);
(i) the time by which notice of entry of premises under the warrant is to be given (expressed as a time on a specified day that is not more than 6 months after the day on which the warrant is issued);
(j) a description of the kinds of things that may be searched for, seized, copied, photographed, recorded, marked, tagged, operated, printed, tested or sampled;
(k) whether the warrant authorises a thing to be placed in substitution for a thing seized under the warrant or moved under subsection 3ZZCE(2);
(l) whether the warrant authorises the re‑entry of the warrant premises, and any adjoining premises authorised to be entered, to:
(i) return to the warrant premises any thing seized under the warrant or moved under subsection 3ZZCE(2); or
(ii) retrieve any thing substituted at the warrant premises for a thing seized under the warrant or moved under subsection 3ZZCE(2);
(m) if the warrant authorises such re‑entry—that the re‑entry must be within:
(i) 14 days of the day of execution of the warrant; or
(ii) if a thing is moved under subsection 3ZZCE(2) and the time for which it may be examined or processed is more than 14 days because of an extension under section 3ZZCE—that time as extended under that section;
(n) any conditions to which the warrant is subject;
(o) that the eligible issuing officer is satisfied as mentioned in paragraph 3ZZBD(1)(b), and has had regard to the matters specified in subsection 3ZZBD(2).
Note 1: Regarding paragraph (i):
(a) the specified time is the time by which a warrant premises occupier’s notice, and any adjoining premises occupier’s notice, must be given (subject to subsections 3ZZDA(4), 3ZZDB(4) and 3ZZDC(3)); and
(b) the specified time can be extended (see subsection 3ZZDC(5)).
Note 2: Regarding the period described in paragraph (m), see also subsection 3ZZCA(3).
(2) The warrant must be signed by the eligible issuing officer who issued it and include his or her name.
When this section applies
(1) This section applies if the requirements specified in subsection 3ZZBC(1) for when an eligible officer of an eligible agency may apply for a delayed notification search warrant in respect of particular premises are satisfied.
Note: This section sets out an alternative method of applying for and issuing delayed notification search warrants.
Application for delayed notification search warrant
(2) The eligible officer may apply to an eligible issuing officer by telephone, fax or other electronic means for a delayed notification search warrant in respect of the premises:
(a) if it is an urgent case; or
(b) if the delay that would occur if the application were made in person would frustrate the effective execution of the delayed notification search warrant.
(3) The eligible issuing officer:
(a) may require communication by voice to the extent that it is practicable in the circumstances; and
(b) may make a recording of the whole or any part of any such communication by voice.
(4) The application must:
(a) include all information required to be provided in an ordinary application for a delayed notification search warrant, but the application may, if necessary, be made before the information is sworn or affirmed; and
(b) include details of, or be accompanied by a copy of, the authorisation under section 3ZZBB.
Eligible issuing officer may complete and sign warrant
(5) The eligible issuing officer may complete and sign the same delayed notification search warrant that would have been issued under section 3ZZBD if, after:
(a) considering the information and having received and considered such further information (if any) as the eligible issuing officer required; and
(b) having regard to the matters specified in subsection 3ZZBD(2);
the eligible issuing officer is satisfied:
(c) that the conditions for issue are met; and
(d) that:
(i) a delayed notification search warrant in the terms of the application should be issued urgently; or
(ii) the delay that would occur if an application were made in person would frustrate the effective execution of the delayed notification search warrant.
(6) After completing and signing the delayed notification search warrant, the eligible issuing officer must inform the applicant, by telephone, fax or other electronic means, of:
(a) the terms of the warrant; and
(b) the day on which, and the time at which, the warrant was signed.
Obligations on applicant
(7) The applicant must then do the following:
(a) complete a form of delayed notification search warrant in the same terms as the warrant completed and signed by the eligible issuing officer;
(b) state on the form the following:
(i) the name of the eligible issuing officer;
(ii) the day and time of signing of the warrant;
(c) send the following to the eligible issuing officer:
(i) the form of warrant completed by the applicant;
(ii) the information referred to in subsection (4), which must have been duly sworn or affirmed.
(8) The applicant must comply with paragraph (7)(c) by the end of the day after the earlier of the following:
(a) the day on which the delayed notification search warrant expires;
(b) the day of execution of the warrant.
Eligible issuing officer to attach documents together
(9) The eligible issuing officer must attach the documents provided under paragraph (7)(c) to the delayed notification search warrant signed by the eligible issuing officer.
(1) A form of delayed notification search warrant duly completed under subsection 3ZZBF(7) is authority for the same powers as are authorised by the warrant signed by the eligible issuing officer under subsection 3ZZBF(5).
(2) In any proceedings, a court is to assume (unless the contrary is proved) that an exercise of power was not authorised by a delayed notification search warrant under section 3ZZBF if:
(a) it is material, in those proceedings, for the court to be satisfied that the exercise of power was duly authorised by the warrant; and
(b) the delayed notification search warrant signed by the eligible issuing officer authorising the exercise of the power is not produced in evidence.
A person must not make, in an application for a delayed notification search warrant, a statement that the person knows to be false or misleading in a material particular.
Penalty: Imprisonment for 2 years.
A person must not:
(a) state in a document that purports to be a form of delayed notification search warrant under section 3ZZBF the name of an eligible issuing officer unless that eligible issuing officer issued the warrant; or
(b) state on a form of delayed notification search warrant under that section a matter that, to the person’s knowledge, departs in a material particular from the form authorised by the eligible issuing officer; or
(c) purport to execute, or present to a person, a document that purports to be a form of delayed notification search warrant under that section that the person knows:
(i) has not been approved by an eligible issuing officer under that section; or
(ii) departs in a material particular from the terms authorised by an eligible issuing officer under that section; or
(d) give to an eligible issuing officer a form of delayed notification search warrant under that section that is not the form of warrant that the person purported to execute.
Penalty: Imprisonment for 2 years.
When this section applies
(1) This section applies if an eligible officer of an eligible agency, under an authorisation under section 3ZZBB from the chief officer of the agency, makes an application (the
delayed notification search warrant application ) to an eligible issuing officer for a delayed notification search warrant:
(a) in respect of particular premises; and
(b) in relation to a particular eligible offence.
(2) The
applicable normal search warrant regime is Division 2 of Part IAA.
Application may be made to eligible issuing officer for normal search warrant
(3) The eligible officer may, at the same time or subsequently, make an application to the eligible issuing officer for the issue of a warrant, under the applicable normal search warrant regime, to search the premises or other premises for evidential material relevant to the eligible offence or to another offence connected to the eligible offence.
(4) If the eligible issuing officer is not a person who is authorised to issue warrants under the applicable normal search warrant regime, the eligible issuing officer may consider and deal with an application made as mentioned in subsection (3) as if the eligible issuing officer were such a person.
Eligible issuing officer may instead treat application as if it were made under applicable normal search warrant regime
(5) If the eligible issuing officer is not satisfied that a delayed notification search warrant in respect of the premises should be issued, the eligible issuing officer may:
(a) treat the delayed notification search warrant application as if it were an application for a warrant under the applicable normal search warrant regime (even if such an application has not been made); and
(b) consider and deal with the application under that regime:
(i) as if the application had been validly made under that regime; and
(ii) if the eligible issuing officer is not a person who is authorised to issue warrants under the applicable normal search warrant regime—as if the eligible issuing officer were such a person.
(1) A delayed notification search warrant authorises the executing officer or a person assisting to do any of the following:
(a) to enter the warrant premises;
(b) if the warrant authorises the entry of adjoining premises—to enter the adjoining premises solely for the purpose of entering or leaving the warrant premises;
(c) to impersonate another person to the extent reasonably necessary for executing the warrant;
(d) to search the warrant premises for the kinds of things (if any) specified in the warrant as the kinds of things that may be searched for;
(e) to seize any thing of a kind specified in the warrant as a kind of thing that may be seized;
(f) to seize other things found in the course of executing the warrant at the warrant premises that the executing officer or a person assisting believes on reasonable grounds to be evidential material, if the executing officer or a person assisting believes on reasonable grounds that the seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing any offence;
(g) to seize any thing found in the course of executing the warrant at the warrant premises that the executing officer or a person assisting believes on reasonable grounds:
(i) would present a danger to a person; or
(ii) could be used to assist a person to escape from lawful custody;
(h) to search for and record fingerprints found at the premises and to take samples of things found at the premises for forensic purposes;
(i) if specified in the warrant—to place a thing in substitution for a thing seized or moved under subsection 3ZZCE(2);
(j) to do any of the following acts to a thing found in the course of executing the warrant at the warrant premises that is of a kind specified in the warrant as the kind of thing to which the act may be done, or that the executing officer or a person assisting believes on reasonable grounds to be evidential material:
(i) copy the thing;
(ii) photograph or otherwise record the thing;
(iii) mark or tag the thing (whether or not the mark or tag can be detected only with the use of a device);
(iv) operate the thing;
(v) print the thing;
(vi) test the thing;
(vii) sample the thing;
(k) to do anything reasonably necessary to conceal the fact that any thing has been done under the warrant;
(l) if specified in the warrant—to re‑enter:
(i) the warrant premises; and
(ii) if the warrant authorises the entry of adjoining premises—the adjoining premises solely for the purpose of entering or leaving the warrant premises;
within the period described in paragraph 3ZZBE(1)(m), for the purpose of returning any thing seized from the warrant premises or moved under subsection 3ZZCE(2), or retrieving any thing substituted at the premises for a thing seized or moved under that subsection;
(m) to exercise the other powers conferred on the executing officer, or a person assisting, by the other provisions of this Division.
Note: Paragraph (c) does not authorise the acquisition or use of an assumed identity (see Part IAC). The protection provided by Part IAC only applies if the requirements of that Part have been complied with.
(2) The entry of premises under a paragraph of subsection (1) may be effected without the knowledge of the occupier of the premises or any other person present at the premises.
(3) If the period referred to in paragraph (1)(l) ends after the delayed notification search warrant expires, the powers referred to in that paragraph may be exercised during that period as if the warrant were still in force.
Photography
(1) In executing a delayed notification search warrant, the executing officer or a person assisting may, for a purpose incidental to the execution of the warrant, take photographs (including video recordings) of the warrant premises or of things at the warrant premises.
Completion of execution of warrant after brief interruption
(2) If a delayed notification search warrant in relation to premises is being executed, the executing officer and the persons assisting may, if the warrant is still in force, complete the execution of the warrant after all of them temporarily cease its execution and leave the premises:
(a) for not more than one hour; or
(b) for not more than 24 hours, or such longer period as allowed by an eligible issuing officer under section 3ZZCC, if they leave the premises:
(i) because of an emergency situation; or
(ii) to reduce the risk of discovery of the fact that a law enforcement officer has been on the premises.
Completion of execution of warrant after court proceedings
(3) If:
(a) the execution of a delayed notification search warrant is stopped by an order of a court; and
(b) the order is later revoked or reversed on appeal; and
(c) the warrant is still in force;
the execution of the warrant may be completed.
(1) If:
(a) a delayed notification search warrant in relation to premises is being executed; and
(b) the executing officer and the persons assisting (if any) leave the premises for a reason described in subparagraph 3ZZCB(2)(b)(i) or (ii); and
(c) the executing officer or a person assisting believes on reasonable grounds that the executing officer and the persons assisting will not be able to return to the premises within the 24‑hour period mentioned in paragraph 3ZZCB(2)(b);
he or she may apply to an eligible issuing officer for an extension of that period.
(2) If an application mentioned in subsection (1) has been made, an eligible issuing officer may extend the period during which the executing officer and persons assisting may be away from the premises if:
(a) the eligible issuing officer is satisfied, by information on oath or affirmation, that there are circumstances that justify the extension; and
(b) the extension would not result in the period ending after the expiry of the warrant.
(1) In executing a delayed notification search warrant:
(a) the executing officer may obtain such assistance; and
(b) the executing officer, or an eligible officer who is a person assisting, may use such force against persons and things; and
(c) a person assisting who is not an eligible officer may use such force against things;
as is necessary and reasonable in the circumstances.
(2) At any time when the executing officer is at warrant premises, or adjoining premises, under a delayed notification search warrant, the executing officer must have in his or her possession, or be in a position to produce without delay:
(a) a copy of the warrant; or
(b) if the warrant was issued under section 3ZZBF—a copy of the form of warrant completed under subsection 3ZZBF(7).
(3) To avoid doubt, subsection (2) does not require the executing officer to produce a copy of the warrant or the form of warrant.
Equipment may be brought onto warrant premises
(1) In executing a delayed notification search warrant, the executing officer or a person assisting may bring to the warrant premises any equipment reasonably necessary for the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant.
Thing may be moved for examination or processing
(2) A thing found at the warrant premises may be moved to another place for examination or processing in order to determine whether it may be seized under the delayed notification search warrant if:
(a) it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance; and
(b) the executing officer or a person assisting suspects on reasonable grounds that the thing contains or constitutes a thing that may be seized under the warrant.
Note: Sections 3ZZCG and 3ZZCH authorise operation of electronic equipment moved under this section.
Time limit on moving a thing
(3) The thing may be moved to another place for examination or processing for no longer than 14 days.
(4) An executing officer may apply to an eligible issuing officer for one or more extensions of that time if the executing officer believes on reasonable grounds that the thing cannot be examined or processed within 14 days or that time as previously extended.
(5) A single extension cannot exceed 7 days.
Equipment at warrant premises may be operated
(6) The executing officer or a person assisting may operate equipment already at the warrant premises to carry out the examination or processing of a thing found at the premises, if the executing officer or person believes on reasonable grounds that:
(a) the equipment is suitable for the examination or processing; and
(b) the examination or processing can be carried out without damage to the equipment or the thing.
Use of electronic equipment to access data
(1) In executing a delayed notification search warrant, the executing officer or a person assisting may operate electronic equipment at the warrant premises to access data (including data not held at the premises) if he or she suspects on reasonable grounds that the data constitutes a thing that may be seized under the warrant.
Copy of data onto disk, tape or other device
(2) If the executing officer or person assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes a thing that may be seized under the warrant, he or she may copy the data to a disk, tape or other associated device and take the disk tape or device from the warrant premises.
(3) If:
(a) under subsection (2), the executing officer or person assisting copies data to a disk, tape or device; and
(b) the chief officer of the authorised agency is satisfied that the data is not required, is no longer required, or is not likely to be required, for a purpose mentioned in section 3ZZEA;
the chief officer must arrange for:
(c) the removal of the data from any device in the control of the authorised agency; and
(d) the destruction of any other reproduction of the data in the control of the authorised agency.
Powers if thing that may be seized is accessible by operating equipment
(4) If the executing officer or a person assisting, after operating the electronic equipment, finds that a thing that may be seized under the warrant is accessible by doing so, he or she may:
(a) seize the equipment and any disk, tape or other associated device; or
(b) if the thing can, by using facilities at the warrant premises, be put in documentary form—operate the facilities to put the thing in that form and seize the documents so produced.
(5) The executing officer or a person assisting may seize equipment under paragraph (4)(a) only if:
(a) it is not practicable to copy the data as mentioned in subsection (2) or to put the thing that may be seized in documentary form as mentioned in paragraph (4)(b); or
(b) possession of the equipment, by the occupier of the warrant premises, could constitute an offence.
(1) If electronic equipment is moved to another place under subsection 3ZZCE(2), the executing officer or a person assisting may operate the equipment to access data (including data held at another place).
(2) If the executing officer or person assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes a thing that may be seized under the warrant, he or she may copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device.
(3) If the chief officer of the authorised agency is satisfied that the data is not required, is no longer required, or is not likely to be required, for a purpose mentioned in section 3ZZEA, the chief officer must arrange for:
(a) the removal of the data from any device in the control of the authorised agency; and
(b) the destruction of any other reproduction of the data in the control of the authorised agency.
(4) If the executing officer or a person assisting, after operating the equipment, finds that a thing that may be seized under the warrant is accessible by doing so, he or she may:
(a) seize the equipment and any disk, tape or other associated device; or
(b) if the thing can be put in documentary form—put the thing in that form and seize the documents so produced.
(5) The executing officer or a person assisting may seize equipment under paragraph (4)(a) only if:
(a) it is not practicable to copy the data as mentioned in subsection (2) or to put the thing that may be seized in documentary form as mentioned in paragraph (4)(b); or
(b) possession of the equipment, by the occupier of the warrant premises, could constitute an offence.
(1) This section applies to electronic equipment seized under this Part or moved under section 3ZZCE.
(2) The electronic equipment may be operated at any location after it has been seized or moved, for the purpose of determining whether data that is a thing that may be seized under the relevant delayed notification search warrant is held on or accessible from the electronic equipment, and obtaining access to such data.
(3) The data referred to in subsection (2) includes, but is not limited to, the following:
(a) data held on the electronic equipment, including data held on the electronic equipment when operated under this section that was not held on the electronic equipment at the time the electronic equipment was seized;
(b) data not held on the electronic equipment but accessible by using it, including data that was not accessible at the time the electronic equipment was seized.
(4) The electronic equipment may be operated before or after the expiry of the relevant delayed notification search warrant.
(5) This section does not limit the operation of other provisions of this Part that relate to dealing with items seized under this Part or moved under section 3ZZCE.
Note: For example, this section does not affect the operation of the time limits in section 3ZZCE on examination or processing of a thing moved under that section.
(1) This section applies if:
(a) as a result of equipment being operated as mentioned in section 3ZZCE, 3ZZCF, 3ZZCG or 3ZZCH:
(i) damage is caused to the equipment; or
(ii) damage is caused to data recorded on the equipment or data access to which was obtained from the operation of the equipment; or
(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care was exercised by the person operating the equipment.
(2) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.
(3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court of Australia for such reasonable amount of compensation as the court determines.
(1) As soon as practicable after the exercise of powers under a delayed notification search warrant has been completed, the executing officer must prepare a written notice (the
warrant premises occupier’s notice ) that complies with subsection (2).(2) The warrant premises occupier’s notice must:
(a) specify the name of the authorised agency; and
(b) specify the day on which, and the time at which, the warrant was issued; and
(c) specify the day of execution of the warrant; and
(d) specify the address, location or other description of the warrant premises; and
(e) specify the number of persons who entered the warrant premises for the purposes of executing, or assisting in the execution of, the warrant; and
(f) include a summary of:
(i) the purpose of delayed notification search warrants (including a statement to the effect that they are to authorise entry and search of premises to be conducted without the knowledge of the occupier of the premises or any other person present at the premises); and
(ii) the things done under the warrant; and
(g) describe any thing seized from the warrant premises and state whether a thing was placed in substitution for the seized thing; and
(h) state whether any thing was returned to, or retrieved from, the warrant premises and the date on which this occurred.
(3) Subject to subsection (4), a staff member of the authorised agency must give the warrant premises occupier’s notice, and a copy of the warrant (or the form of warrant completed under subsection 3ZZBF(7)), to the person (the
occupier ) who was the occupier of the warrant premises when they were entered under the warrant. The notice, and the copy of the warrant (or form of warrant), must be given to the occupier by the time applicable under section 3ZZDC.(4) If the occupier cannot be identified or located, a staff member of the authorised agency must report back to an eligible issuing officer, and the eligible issuing officer may give such directions as the eligible issuing officer thinks fit.
(5) A notice and a direction under this section are not legislative instruments.
(1) As soon as practicable after adjoining premises are entered under a delayed notification search warrant, the executing officer must prepare a written notice (the
adjoining premises occupier’s notice ) that complies with subsection (2).(2) The adjoining premises occupier’s notice must specify:
(a) the name of the authorised agency; and
(b) the day on which, and the time at which, the warrant was issued; and
(c) the day of execution of the warrant; and
(d) the address, location or other description of:
(i) the warrant premises; and
(ii) the adjoining premises; and
(e) the purpose of delayed notification search warrants, including:
(i) a statement to the effect that they are to authorise entry and search of warrant premises to be conducted without the knowledge of the occupier of those premises or any other person present at those premises; and
(ii) a statement that adjoining premises may be entered solely for the purpose of entering or leaving the warrant premises.
(3) Subject to subsection (4), a staff member of the authorised agency must give the adjoining premises occupier’s notice, and a copy of the warrant (or the form of warrant completed under subsection 3ZZBF(7)), to the person (the
occupier ) who was the occupier of the adjoining premises when they were entered under the warrant. The notice, and the copy of the warrant, must be given to the occupier by the time applicable under section 3ZZDC.(4) If the occupier cannot be identified or located, a staff member of the authorised agency must report back to an eligible issuing officer, and the eligible issuing officer may give such directions as the eligible issuing officer thinks fit.
(5) A notice and a direction under this section are not legislative instruments.
Section determines time by which notice must be given
(1) This section:
(a) applies if a warrant premises occupier’s notice, or an adjoining premises occupier’s notice, is prepared in relation to a delayed notification search warrant; and
(b) determines the time by which the notice (and a copy of the warrant, or the form of warrant) must be given in accordance with subsection 3ZZDA(3) or 3ZZDB(3).
Note: This section has effect subject to any directions given under subsection 3ZZDA(4) or 3ZZDB(4).
General rule
(2) Subject to subsection (3), the notice (and the copy of the warrant or form of warrant) must be given by:
(a) the time specified under paragraph 3ZZBE(1)(i); or
(b) if that time has been extended under subsection (5), that time as so extended.
Rule if person is charged with an offence relying on evidence obtained under the warrant
(3) If:
(a) a person is charged with an offence; and
(b) the prosecution proposes to rely on evidence obtained under the warrant;
the notice (and the copy of the warrant or of the form of the warrant completed under subsection 3ZZBF(7)) must be given as soon as practicable after the person is charged with the offence, but no later than the earlier of the following times:
(c) the time applicable under subsection (2);
(d) the time of service of the brief of evidence by the prosecution.
Extending the time specified in the warrant for giving notice
(4) The chief officer of the authorised agency may, in writing, authorise an eligible officer of the agency to apply to an eligible issuing officer for an extension of the time specified under paragraph 3ZZBE(1)(i) by which notice of entry of premises under a delayed notification search warrant is to be given.
(5) An eligible issuing officer may, on application by an eligible officer authorised under subsection (4), extend the time specified under paragraph 3ZZBE(1)(i) by which notice of entry of premises under a delayed notification search warrant is to be given if the eligible issuing officer is satisfied that there are reasonable grounds for continuing to delay notice of entry of the premises.
(6) An eligible issuing officer may, under subsection (5), extend the time specified under paragraph 3ZZBE(1)(i) on more than one occasion, but:
(a) must not extend the time by more than 6 months on any one occasion; and
(b) must not extend the time to more than 12 months after the day on which the delayed notification search warrant was issued unless:
(i) the Minister is satisfied on reasonable grounds that there are exceptional circumstances justifying the extension, and that it is in the public interest to do so; and
(ii) the Minister has issued a certificate approving the application for the extension; and
(iii) the eligible issuing officer is satisfied that there are exceptional circumstances justifying such an extension.
(7) A certificate issued under subsection (6) is not a legislative instrument.
Use and sharing of thing by eligible officer or Commonwealth officer
(1) An eligible officer of an eligible agency or a Commonwealth officer may use, or make available to another eligible officer or Commonwealth officer to use, a thing seized under this Part for the purpose of any or all of the following if it is necessary to do so for that purpose:
(a) preventing, investigating or prosecuting an offence;
(b) proceedings under the
Proceeds of Crime Act 1987 or theProceeds of Crime Act 2002 ;(c) proceedings for the forfeiture of the thing under a law of the Commonwealth;
(d) the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under, Division 104 or 105 of the
Criminal Code ;(e) investigating or resolving a complaint or an allegation of misconduct relating to an exercise of a power or the performance of a function or duty under this Part;
(f) investigating or resolving an AFP conduct or practices issue (within the meaning of the
Australian Federal Police Act 1979 ) under Part V of that Act;(g) investigating or resolving a complaint under the
Ombudsman Act 1976 or thePrivacy Act 1988 ;(h) investigating or inquiring into a corruption issue under the
Law Enforcement Integrity Commissioner Act 2006 ;(i) proceedings in relation to a complaint, allegation or issue mentioned in paragraph (e), (f), (g) or (h);
(j) deciding whether to institute proceedings, to make an application or request, or to take any other action, mentioned in any of the preceding paragraphs of this subsection;
(k) the performance of the functions of the Australian Federal Police under section 8 of the
Australian Federal Police Act 1979 .(2) An eligible officer of an eligible agency or a Commonwealth officer may use a thing seized under this Part for any other use that is required or authorised by or under a law of a State or a Territory.
(3) An eligible officer of an eligible agency may make available to another eligible officer of an eligible agency or a Commonwealth officer to use a thing seized under this Part for any purpose for which the making available of the thing or document is required or authorised by a law of a State or Territory.
(4) To avoid doubt, this section does not limit any other law of the Commonwealth that:
(a) requires or authorises the use of a thing; or
(b) requires or authorises the making available (however described) of a thing.
Sharing thing for use by State, Territory or foreign agency
(5) An eligible officer of an eligible agency or a Commonwealth officer may make a thing seized under this Part available to:
(a) a State or Territory law enforcement agency; or
(b) an agency that has responsibility for:
(i) law enforcement in a foreign country; or
(ii) intelligence gathering for a foreign country; or
(iii) the security of a foreign country;
to be used by that agency for a purpose mentioned in subsection (1), (2) or (3) and the purpose of any or all of the following (but not for any other purpose):
(c) preventing, investigating or prosecuting an offence against a law of a State or Territory;
(d) proceedings under a corresponding law (within the meaning of the
Proceeds of Crime Act 1987 or theProceeds of Crime Act 2002 );(e) proceedings for the forfeiture of the thing under a law of a State or Territory;
(f) deciding whether to institute proceedings or to take any other action mentioned in any of paragraphs (1)(a) to (k) (inclusive), subsection (2) or (3) or paragraph (c), (d) or (e) of this subsection.
Ministerial arrangements for sharing
(6) This Division does not prevent the Minister from making an arrangement with a Minister of a State or Territory for:
(a) the making available to a State or Territory law enforcement agency of that State or Territory, for purposes mentioned in subsections (1), (3) and (5), of things seized under this Part; and
(b) the disposal by the agency of such things when they are no longer of use to that agency for those purposes.
Note: This subsection does not empower the Minister to make such an arrangement.
(1) If the chief officer of the relevant eligible agency is satisfied that a thing seized under this Part is not required (or is no longer required) for a purpose mentioned in section 3ZZEA or for other judicial or administrative review proceedings, the chief officer must take reasonable steps to return the thing to the person from whom it was seized, or to the owner if that person is not entitled to possess it.
(2) However, the chief officer does not have to take those steps if:
(a) either:
(i) the thing may be retained because of an order under subsection 3ZZEC(1), or any other order under that subsection has been made in relation to the thing; or
(ii) the chief officer has applied for such an order and the application has not been determined; or
(b) the thing may otherwise be retained, destroyed or disposed of under a law, or an order of a court or tribunal, of the Commonwealth or of a State or a Territory; or
(c) the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership; or
(d) a warrant premises occupier’s notice has not been given in relation to the occupier of the warrant premises.
(1) An eligible issuing officer may, on application by an eligible officer of an eligible agency, make any of the orders referred to in subsection (2) in relation to a thing seized under this Part if the eligible issuing officer is satisfied that there are reasonable grounds to suspect that, if the thing is returned to the owner of the thing, or the person from whom the thing was seized, it is likely to be used by that person or another person in the commission of:
(a) a terrorist act or a terrorism offence; or
(b) a serious offence (within the meaning of Part IAA).
(2) The orders are as follows:
(a) an order that the thing may be retained for the period specified in the order;
(b) an order that the thing is forfeited to the Commonwealth;
(c) an order that:
(i) the thing be sold and the proceeds given to the owner of the thing; or
(ii) the thing be sold in some other way;
(d) an order that the thing is to be destroyed or otherwise disposed of.
(3) If the eligible issuing officer is not satisfied as mentioned in subsection (1), the eligible issuing officer must order that the thing be returned to:
(a) the person from whom the thing was seized; or
(b) if that person is not entitled to possess the thing—the owner of the thing.
(1) The executing officer in relation to a delayed notification search warrant, or the applicant for the warrant, must give a written report on the warrant to the chief officer of the authorised agency.
(2) The report must be given to the chief officer of the authorised agency as soon as practicable after:
(a) the day of execution of the warrant; or
(b) if the warrant was not executed—the expiry of the warrant.
(3) The report must:
(a) specify the address, location or other description of the warrant premises; and
(b) state whether or not the warrant was executed; and
(c) state whether the application for the warrant was made in person or in accordance with section 3ZZBF.
(4) If the warrant was executed, the report must also include the following information:
(a) the day of execution of the warrant;
(b) the name of the executing officer;
(c) the name of any persons assisting and the kind of assistance provided;
(d) the name of the occupier of the warrant premises, if known to the executing officer;
(e) whether adjoining premises were entered under the warrant and, if they were, the name of the occupier of the adjoining premises, if known to the executing officer;
(f) the things that were done under the warrant;
(g) without limiting paragraph (f)—details of any thing at the warrant premises:
(i) seized; or
(ii) replaced with a substitute; or
(iii) copied, photographed or otherwise recorded; or
(iv) marked or tagged; or
(v) operated, printed, tested or sampled;
(h) whether or not the execution of the warrant assisted in the prevention or investigation of an eligible offence;
(i) details of compliance with any conditions to which the warrant was subject;
(j) details of any warrant premises occupier’s notice given in relation to the warrant;
(k) details of any adjoining premises occupier’s notice given in relation to the warrant;
(l) details of any directions given under subsection 3ZZDA(4) or 3ZZDB(4) in relation to the warrant.
(5) To avoid doubt, if, at the time a report was given, the details in any of paragraphs (4)(j), (k) and (l) were not included because notice or directions had not been given at that time, but are given later, the person who gave the original report under subsection (1) must give a further report under that subsection including those details.
(6) If the warrant was not executed, the report must state the reason why it was not executed.
(7) If the warrant premises were entered after the warrant was executed for the purpose of returning a thing to, or retrieving a thing left at, the premises, a written report in relation to that entry must be provided to the chief officer of the authorised agency. The report must include the following information:
(a) the address, location or other description of the warrant premises;
(b) the date on which the warrant premises were entered for that purpose;
(c) the name of each person who so entered the warrant premises;
(d) details of the thing returned or retrieved;
(e) if the thing was not returned or retrieved—the reason why the thing was not returned or removed.
(8) A report under subsection (7) must be given as soon as practicable after the warrant premises were entered as mentioned in that subsection.
(9) A report under this section is not a legislative instrument.
(1) The chief officer of an eligible agency must give a written report to the Minister that includes the following information in respect of each financial year:
(a) the number of applications for delayed notification search warrants made in person by eligible officers of the agency;
(b) the number of applications for delayed notification search warrants made under section 3ZZBF by eligible officers of the agency;
(c) the number of delayed notification search warrants issued as a result of applications referred to in paragraphs (a) and (b) and the eligible offences to which they related;
(d) the number of delayed notification search warrants that were executed by an eligible officer of the agency;
(e) the number of delayed notification search warrants that were executed by an eligible officer of the agency under which:
(i) one or more things were seized from the warrant premises; or
(ii) one or more things were placed in substitution at the warrant premises for a seized thing; or
(iii) one or more things were returned to, or retrieved from, the warrant premises; or
(iv) one or more things were copied, photographed, recorded, marked, tagged, operated, printed, tested or sampled at the warrant premises;
(f) any other information relating to delayed notification search warrants and the administration of this Part that the Minister considers appropriate.
(2) The report for a financial year must be given to the Minister as soon as practicable, and in any event not more than 3 months, after the end of the financial year.
(3) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives it.
As soon as practicable after each 6‑month period starting on 1 January or 1 July the chief officer of an eligible agency must give a written report to the Ombudsman that includes the following information in respect of the period:
(a) the number of applications for delayed notification search warrants made in person by eligible officers of the agency;
(b) the number of applications for delayed notification search warrants made under section 3ZZBF by eligible officers of the agency;
(c) the number of delayed notification search warrants issued as a result of applications referred to in paragraphs (a) and (b) and the eligible offences to which they related;
(d) the number of delayed notification search warrants that were executed by an eligible officer of the agency.
The chief officer of an eligible agency must cause the following to be kept:
(a) a copy of each authorisation given in writing by the chief officer under section 3ZZBB;
(b) a copy of the written record made under section 3ZZBB of each authorisation given orally by the chief officer under that section;
The amendments made by Part 1 of this Schedule apply in relation to visas granted before, on or after that commencement.
Before “This Part”, insert “(1)”.
Add:
(2) Despite paragraph (1)(b), this Part applies to a security assessment in respect of a person if:
(a) the person was the holder of a valid permanent visa; and
(b) the visa was cancelled under section 134B of the
Migration Act 1958 ; and(c) the security assessment is made for the purposes of section 134C of that Act in relation to that cancellation.
Repeal the paragraph, substitute:
(g) to enhance the Department’s ability to identify non‑citizens who have a criminal history or who are of character concern; and
(ga) to assist in identifying persons who may be a security concern to Australia or a foreign country; and
Repeal the heading, substitute:
Repeal the paragraph, substitute:
(c) comply with any requirement, made by a clearance officer before an event referred to in subparagraph 172(1)(a)(iii) or (b)(iii) or paragraph 172(1)(c) occurs, to provide one or more personal identifiers referred to in subsection (5) to a clearance authority; and
(d) if under paragraph (a) the person presents evidence to an authorised system—provide to the authorised system a photograph or other image of the person’s face and shoulders.
Omit “present evidence, or provide information,”, substitute “present or provide evidence, information or personal identifiers”.
Omit “neither the system nor a clearance officer requires”, substitute “a clearance officer does not require”.
Repeal the heading, substitute:
Complying with paragraphs (1)(a) and (b)
Insert:
Personal identifiers provided under paragraph (1)(c)
Omit “paragraphs (1)(a) and (c), a person may only be required to present or”, substitute “paragraph (1)(c), a person may only be required to”.
After “identifier”, insert “of a type”.
Repeal the subsection.
Repeal the subsection, substitute:
(7) A person is taken not to have complied with a requirement to provide a personal identifier under paragraph (1)(c) or (d) unless the personal identifier is provided by way of one or more identification tests carried out by an authorised officer or authorised system.
Omit “non‑citizen”, substitute “person”.
After “authorised officer”, insert “or authorised system”.
Omit “the officer or an authorised system”, substitute “a clearance authority”.
Add:
; and (c) to comply with any requirement made by a clearance officer to provide one or more personal identifiers referred to in subsection (2A) to a clearance authority; and
(d) if under paragraph (a) the person presents evidence to an authorised system—to provide to the authorised system a photograph or other image of the person’s face and shoulders.
Repeal the subsection, substitute:
Complying with subsection (1)
(2) A person is to comply with subsection (1) in a prescribed way.
Omit “present evidence, or provide information,”, substitute “present or provide evidence, information or personal identifiers”.
Omit “neither the system nor a clearance officer requires the person to present or provide evidence, information or personal identifiers referred to in subsection (1) or (2)”, substitute “a clearance officer does not require the person to present or provide evidence, information or personal identifiers referred to in subsection (1)”.
Repeal the heading, substitute:
Personal identifiers provided under paragraph (1)(c)
Omit “paragraph (1)(a) and subsection (2), a person may only be required to present or”, substitute “paragraph (1)(c), a person may only be required to”.
After “identifier”, insert “of a type”.
Repeal the subsection.
Repeal the subsection, substitute:
(4) A person is taken not to have complied with a requirement to provide a personal identifier under paragraph (1)(c) or (d) unless the personal identifier is provided by way of one or more identification tests carried out by an authorised officer or authorised system.
Omit “non‑citizen”, substitute “person”.
After “an authorised officer”, insert “or authorised system”.
Omit “to leave Australia (whether or not after calling at places in Australia)”, substitute “due to depart from a place in Australia to a place outside Australia (whether or not after calling at other places in Australia)”.
Omit “the officer or an authorised system”, substitute “a clearance authority”.
Add:
; and (c) comply with any requirement made by a clearance officer to provide one or more personal identifiers referred to in subsection (2A) to a clearance authority; and
(d) if under paragraph (a) the person presents evidence to an authorised system—provide to the authorised system a photograph or other image of the person’s face and shoulders.
Repeal the subsection, substitute:
Complying with subsection (1)
(2) A person is to comply with subsection (1) in a prescribed way.
Omit “present evidence, or provide information,”, substitute “present or provide evidence, information or personal identifiers”.
Omit “neither the system nor a clearance officer requires the person to present or provide evidence, information or personal identifiers referred to in subsection (1) or (2)”, substitute “a clearance officer does not require the person to present or provide evidence, information or personal identifiers referred to in subsection (1)”.
Repeal the heading, substitute:
Personal identifiers provided under paragraph (1)(c)
Omit “paragraph (1)(a) and subsection (2), a person may only be required to present or”, substitute “paragraph (1)(c), a person may only be required to”.
After “identifier”, insert “of a type”.
Repeal the subsection.
Repeal the subsection, substitute:
(4) A person is taken not to have complied with a requirement to provide a personal identifier under paragraph (1)(c) or (d) unless the personal identifier is provided by way of one or more identification tests carried out by an authorised officer or authorised system.
Omit “non‑citizen”, substitute “person”.
After “an authorised officer”, insert “or authorised system”.
Add:
Collection of information
(1) If a person presents or provides a document to a clearance authority under this Division, the clearance authority may collect information (including personal identifiers) in the document.
Access to, and disclosure of, personal information
(2) The following provisions:
(a) section 336D (which authorises access to identifying information);
(b) section 336E (other than subsection 336E(1)) and section 336F (which authorise disclosure of identifying information);
(c) a provision of an instrument made under section 336D or 336F;
apply to personal information (other than personal identifiers) collected under this Division in the same way as they apply to identifying information.
Effect on interpretation
(3) This section does not, by implication, affect the interpretation of any other provision of this Act or an instrument made under this Act.
Omit “non‑citizens” (wherever occurring), substitute “persons”.
Repeal the heading, substitute:
Omit “carrying out an identification test on a non‑citizen”, substitute “an authorised officer carries out an identification test on a person”.
Omit “the non‑citizen” (wherever occurring), substitute “the person”.
Omit “non‑citizen” (wherever occurring), substitute “person”.
Repeal the heading, substitute:
Omit “non‑citizen” (wherever occurring), substitute “person”.
Omit “the authorised officer is to carry out identification tests on the non‑citizen”, substitute “an identification test is to be carried out on a person”.
Omit “non‑citizen”, substitute “person”.
Omit “carried out by an authorised officer”.
Omit “non‑citizen”, substitute “person”.
Omit “non‑citizen”, substitute “person”.
Omit “non‑citizen’s” (wherever occurring), substitute “person’s”.
Omit “non‑citizen”, substitute “person”.
Omit “non‑citizen”, substitute “person”.
Omit “non‑citizen’s” (wherever occurring), substitute “person’s”.
Omit “non‑citizen”, substitute “person”.
Repeal the paragraph, substitute:
(g) the purposes of:
(i) this Act or an instrument made under this Act; or
(ii) the
Australian Citizenship Act 2007 or an instrument made under that Act; or(iii) the
Customs Act 1901 or an instrument made under that Act; or(iv) any other law of the Commonwealth prescribed by the regulations;
Repeal the subparagraph, substitute:
(iii) identify non‑citizens who have a criminal history or who are of character concern; or
(iiia) identify persons who may be a security concern to Australia or a foreign country; or
Insert:
(ba) is for the purpose of:
(i) this Act or an instrument made under this Act; or
(ii) the
Australian Citizenship Act 2007 or an instrument made under that Act; or(iii) the
Customs Act 1901 or an instrument made under that Act; or(iv) any other law of the Commonwealth prescribed by the regulations; or
Insert:
(ec) is for the purpose of identifying non‑citizens who have a criminal history or who are of character concern; or
(ed) is for the purpose of identifying persons who may be a security concern to Australia or a foreign country; or
(1) The amendment made by item 1 of this Schedule, as it affects section 336A, 336D or 336F of the
Migration Act 1958 , applies in relation to personal identifiers and personal information provided before or after the commencement of this Schedule.(2) The amendment made by item 39 of this Schedule applies in relation to:
(a) documents presented or provided; or
(b) personal information provided;
before or after the commencement of this Schedule.
(3) The amendments made by items 57 to 60 apply in relation to personal identifiers and personal information provided before or after the commencement of this Schedule.
(4) If:
(a) an instrument was made for the purposes of a provision of the
Migration Act 1958 ; and(b) the instrument was in force immediately before the commencement of this Schedule; and
(c) the provision is amended by this Schedule;
then the instrument continues in force (and may be dealt with) as if it were made for the purposes of that provision as amended.
Omit “, including passenger processing at Australia’s border”.
Insert:
(ca) to improve passenger processing at Australia’s border; and
After “voyage to”, insert “or from”.
After “information”, insert “(including personal identifiers)”.
Repeal the heading, substitute:
Omit “an airport or port”, substitute “a place”.
Omit “airport or port”, substitute “place in Australia”.
Omit “(and the obligation in subsection (6))”.
Omit “airport” (wherever occurring), substitute “place”.
After “arrival”, insert “at the place in Australia”.
Repeal the subsections.
Insert:
Aircraft and ships to which section applies
(1) This section applies to an aircraft or ship of a kind to which this Division applies that is due to depart from a place in Australia on a flight or voyage to a place outside Australia (whether or not after calling at other places in Australia).
Obligation to report on passengers and crew
(2) The operator of the aircraft or ship must, in accordance with this section:
(a) report to the Department, using the approved primary reporting system for passengers, on each passenger who is on, or is expected to be on, the flight or voyage (including any part of the flight or voyage); and
(b) report to the Department, using the approved primary reporting system for crew, on each member of the crew who is on, or is expected to be on, the flight or voyage (including any part of the flight or voyage).
Note 1: This obligation must be complied with even if the information concerned is personal information.
Note 2: Section 245N contains an offence for failure to comply with this subsection.
(3) However, if:
(a) on the flight or voyage, the aircraft or ship calls at one or more places in Australia before departing to the place outside Australia; and
(b) the regulations prescribe that a report under subsection (2) must only relate to the part of the flight or voyage that is from the last place in Australia to the place outside Australia;
then the report must be on each passenger or crew member who is on, or is expected to be on, that part of the flight or voyage.
Information to be reported
(4) A report on a passenger or crew member under subsection (2) must include the information relating to the passenger or crew member that is specified, as mentioned in subsection 245J(3), in relation to the relevant approved primary reporting system.
Deadline for providing a report
(5) A report on a passenger or crew member under subsection (2) must be provided:
(a) if the regulations prescribe a period or periods before the aircraft’s or ship’s departure from a place for the giving of a report under subsection (2) in relation to the passenger or crew member—not later than the start of that period or each of those periods; and
(b) if the regulations prescribe an event or events for the giving of a report under subsection (2) in relation to the passenger or crew member—at the time of that event or each of those events; and
(c) if the regulations prescribe a time or times for the giving of a report under subsection (2) in relation to the passenger or crew member—at that time or each of those times.
(6) To avoid doubt, more than one report may be required to be provided under subsection (2) in relation to a passenger or crew member.
Note: For example, if regulations made for the purposes of subsection (5) prescribe a period of 48 hours before the aircraft’s or ship’s departure from a place on the flight or voyage and also prescribe an event of the passenger or crew member checking‑in for the flight or voyage, then 2 reports would be required to be provided under this section in relation to the passenger or crew member.
Insert:
Collection of personal information
(1) The Department may collect information (including personal identifiers) in a report provided under this Division.
Access to, and disclosure of, personal information
(2) The following provisions:
(a) section 336D (which authorises access to identifying information);
(b) section 336E (other than subsection 336E(1)) and section 336F (which authorise disclosure of identifying information);
(c) a provision of an instrument made under section 336D or 336F;
apply to personal information (other than personal identifiers) collected under this Division, or under subsection 64ACA(11) or 64ACB(8) of the
Customs Act 1901 , in the same way as they apply to identifying information.
(3) As soon as practicable after information is reported under section 245L or 245LA, the Department must disclose the information (including personal identifiers) to the Australian Customs and Border Protection Service.
Effect on interpretation
(4) This section does not, by implication, affect the interpretation of any other provision of this Act or an instrument made under this Act.
Omit “Section 245L applies”, substitute “Sections 245L and 245LA apply”.
Omit “paragraph 245L(2)(a) or (b)”, substitute “subsections 245L(2) and 245LA(2)”.
Omit “subsection 245L(3)”, substitute “subsections 245L(3) and 245LA(4)”.
After “245L(2)”, insert “or 245LA(2)”.
Access and disclosure of identifying information etc. (1) The amendments made by items 1 and 2 of this Schedule, as they affect section 336A, 336D or 336F of the
Migration Act 1958 , apply in relation to personal identifiers and personal information provided before, on or after the commencement of this Schedule.
Reports about arrivals including personal identifiers (2) The amendments made by item 4 apply in relation to an aircraft or ship arriving at a place in Australia on or after that commencement.
(3) However, subitem (2) does not apply to the extent that it would require a report given before that commencement to include a personal identifier.
Reports about arrivals at a place in Australia (4) The amendments made by items 6, 7, 9 and 10 apply in relation to an aircraft or ship arriving at a place in Australia (whether or not an airport or a port) on or after that commencement.
(5) However, if the aircraft or ship arrives at a place that is not an airport or port, then subitem (4) does not apply to the extent that it would require a report in relation to that arrival to be given before that commencement.
Reports about departures (6) The amendments made by items 3, 4, 12, 14, 15, 16 and 17 apply in relation to an aircraft or ship departing from a place in Australia on or after that commencement.
(7) However, subitem (6) does not apply to the extent that it would require a report to be given before that commencement.
Dealing with information (8) The amendment made by item 13 applies in relation to information in reports provided on or after that commencement.
Saving
(9) If:
(a) an instrument was made for the purposes of a provision of the
Migration Act 1958 ; and(b) the instrument was in force immediately before the commencement of this Schedule; and
(c) the provision is amended by this Schedule;
then the instrument continues in force (and may be dealt with) as if it were made for the purposes of that provision as amended.
Omit “subsection 245L(6)”, substitute “section 245LB”.
After “present”, insert “, produce”.
After “presented”, insert “, produced”.
Insert:
(1) A person (whether a citizen or non‑citizen) must not give, present, produce or provide a bogus document to an officer, an authorised system, the Minister, a tribunal or any other person or body performing a function or purpose under, or in relation to, this Act (the
official ), or cause such a document to be so given, presented, produced or provided.(2) A bogus document given, presented, produced or provided in contravention of subsection (1) is forfeited to the Commonwealth.
(1) If an officer reasonably suspects that a document is forfeited under subsection 487ZI(2), then the officer may seize the document.
(2) As soon as practicable after seizing the document, the officer must give written notice of the seizure to the person who gave, presented, produced or provided the document to the official under subsection 487ZI(1).
(3) The notice must:
(a) identify the document; and
(b) state that the document has been seized; and
(c) specify the reason for the seizure; and
(d) state that the document will be condemned as forfeited unless the person institutes proceedings against the Commonwealth before the end of the period specified in the notice:
(i) to recover the document; or
(ii) for a declaration that the document is not forfeited.
(4) For the purposes of paragraph (3)(d), the period must:
(a) start on the date of the notice; and
(b) end 90 days after that date.
(1) If a document is seized under subsection 487ZJ(1), then:
(a) the person who gave, presented, produced or provided the document to the official under subsection 487ZI(1); and
(b) if that person is not the owner of the document—the owner;
may, subject to paragraph (2)(b), institute proceedings in a court of competent jurisdiction:
(c) to recover the document; or
(d) for a declaration that the document is not forfeited.
(2) The proceedings:
(a) may be instituted even if the seizure notice required to be given under subsection 487ZJ(2) in relation to the document has not yet been given; and
(b) may only be instituted before the end of the period specified in the seizure notice.
(3) If, before the end of the period specified in the seizure notice, the person or owner does not institute the proceedings, the document is condemned as forfeited to the Commonwealth immediately after the end of that period.
(4) If, before the end of the period specified in the seizure notice, the person or owner does institute the proceedings, the document is condemned as forfeited to the Commonwealth at the end of the proceedings unless there is:
(a) an order for the person or owner to recover the document; or
(b) a declaration that the document is not forfeited.
(5) For the purposes of subsection (4), if the proceedings go to judgment, they end:
(a) if no appeal against the judgment is lodged within the period for lodging such an appeal—at the end of that period; or
(b) if an appeal against the judgment is lodged within that period—when the appeal lapses or is finally determined.
(1) If, under section 487ZK, a document is condemned as forfeited to the Commonwealth, it must be dealt with or disposed of (including by being given to another person) in accordance with any direction given by the Minister under section 499.
(2) If the Minister considers that the document may be relevant to proceedings in a court or tribunal, then the Minister:
(a) must give a direction under section 499 for the safe keeping of the document; and
(b) must authorise access to the document for the purposes of those proceedings.
After “bogus document”, insert “(within the meaning of section 97)”.
Omit “(within the meaning of section 97)”.
The amendments made by Part 1 of this Schedule apply to documents given, presented, produced or provided to the official on or after the commencement of item 1 of this Schedule.
Insert:
bogus document has the same meaning as in subsection 5(1) of theMigration Act 1958 .
Insert:
(1) A person (whether a citizen or non‑citizen) must not give a bogus document to the Minister, a person acting under a delegation or authorisation of the Minister, a tribunal or any other person or body performing a function or purpose under, or in relation to, this Act (the
official ), or cause such a document to be so given.(2) A bogus document given in contravention of subsection (1) is forfeited to the Commonwealth.
(1) If the Minister reasonably suspects that a document is forfeited under subsection 45A(2), then the Minister may seize the document.
(2) As soon as practicable after seizing the document, the Minister must give written notice of the seizure to the person who gave the document to the official under subsection 45A(1).
(3) The notice must:
(a) identify the document; and
(b) state that the document has been seized; and
(c) specify the reason for the seizure; and
(d) state that the document will be condemned as forfeited unless the person institutes proceedings against the Commonwealth before the end of the period specified in the notice:
(i) to recover the document; or
(ii) for a declaration that the document is not forfeited.
(4) For the purposes of paragraph (3)(d), the period must:
(a) start on the date of the notice; and
(b) end 90 days after that date.
(1) If a document is seized under subsection 45B(1), then:
(a) the person who gave the document to the official under subsection 45A(1); and
(b) if that person is not the owner of the document—the owner;
may, subject to paragraph (2)(b), institute proceedings in a court of competent jurisdiction:
(c) to recover the document; or
(d) for a declaration that the document is not forfeited.
(2) The proceedings:
(a) may be instituted even if the seizure notice required to be given under subsection 45B(2) in relation to the document has not yet been given; and
(b) may only be instituted before the end of the period specified in the seizure notice.
(3) If, before the end of the period specified in the seizure notice, the person or owner does not institute the proceedings, the document is condemned as forfeited to the Commonwealth immediately after the end of that period.
(4) If, before the end of the period specified in the seizure notice, the person or owner does institute the proceedings, the document is condemned as forfeited to the Commonwealth at the end of the proceedings unless there is:
(a) an order for the person or owner to recover the document; or
(b) a declaration that the document is not forfeited.
(5) For the purposes of subsection (4), if the proceedings go to judgment, they end:
(a) if no appeal against the judgment is lodged within the period for lodging such an appeal—at the end of that period; or
(b) if an appeal against the judgment is lodged within that period—when the appeal lapses or is finally determined.
(1) If, under section 45C, a document is condemned as forfeited to the Commonwealth, it must be dealt with or disposed of (including by being given to another person) in accordance with any direction given by the Minister.
(2) If the Minister considers that the document may be relevant to proceedings in a court or tribunal, then the Minister:
(a) must give a direction for the safe keeping of the document; and
(b) must authorise access to the document for the purposes of those proceedings.
(3) A direction given under this section is not a legislative instrument.
Insert:
bogus document has the same meaning as in section 97 of theMigration Act 1958 .
Omit “section 97”, substitute “subsection 5(1)”.
The amendments made by Part 2 of this Schedule apply to documents given to the official on or after the commencement of item 1 of this Schedule.
The endnotes provide information about this compilation and the compiled law.
The following endnotes are included in every compilation:
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
Endnotes about misdescribed amendments and other matters are included in a compilation only as necessary.
The abbreviation key sets out abbreviations that may be used in the endnotes.
Amending laws are annotated in the legislation history and amendment history.
The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.
The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.
A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.
If a misdescribed amendment cannot be given effect as intended, the amendment is set out in the endnotes.
A = Act | orig = original |
ad = added or inserted | par = paragraph(s)/subparagraph(s) |
am = amended | /sub‑subparagraph(s) |
amdt = amendment | pres = present |
c = clause(s) | prev = previous |
C[x] = Compilation No. x | (prev…) = previously |
Ch = Chapter(s) | Pt = Part(s) |
def = definition(s) | r = regulation(s)/rule(s) |
Dict = Dictionary | Reg = Regulation/Regulations |
disallowed = disallowed by Parliament | reloc = relocated |
Div = Division(s) | renum = renumbered |
exp = expires/expired or ceases/ceased to have | rep = repealed |
effect | rs = repealed and substituted |
F = Federal Register of Legislative Instruments | s = section(s)/subsection(s) |
gaz = gazette | Sch = Schedule(s) |
LI = Legislative Instrument | Sdiv = Subdivision(s) |
LIA = | SLI = Select Legislative Instrument |
(md) = misdescribed amendment | SR = Statutory Rules |
mod = modified/modification | Sub‑Ch = Sub‑Chapter(s) |
No. = Number(s) | SubPt = Subpart(s) |
o = order(s) | |
Ord = Ordinance | commenced or to be commenced |
Counter‑Terrorism Legislation Amendment (Foreign Fighters) Act 2014 | 116, 2014 | 3 Nov 2014 | Sch 1 and 2: 1 Dec 2014 (s 2(1) item 2) Sch 3–5, Sch 7 (items 1–3, 6, 8, 9, 11): 4 Nov 2014 (s 2(1) items 3, 5, 8, 10, 11, 13) Sch 6: 1 July 2015 (s 2(1) item 4) Sch 7 (items 5, 10): 18 Apr 2015 (s 2(1) items 7, 12) Sch 7 (item 7): never commenced (s 2(1) item 9) Remainder: 3 Nov 2014 (s 2(1) items 1, 6) | |
Migration Amendment (Protection and Other Measures) Act 2015 | 35, 2015 | 13 Apr 2015 | Sch 5 (item 1): 14 Apr 2015 (s 2(1) item 11) | — |
Statute Law Revision Act (No. 2) 2015 | 145, 2015 | 12 Nov 2015 | Sch 2 (item 4): 3 Nov 2014 (s 2(1) item 4) | — |
s 2................................. | am No 35, 2015; No 145, 2015 |
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